THE BATTLE OVER CONTROVERSIAL BUSH JUDICIAL NOMINEE PRISCILLA OWEN:
Why An Ideological Selection Deserves An Ideological Confirmation Process

By EDWARD LAZARUS

Thursday, Jul. 25, 2002

Thanks to some excellent newspaper reporting, we know an unusual amount about Owen's selection. In part for this reason, her confirmation process illuminates the profoundly broken process by which we pick judges.

Nomination Commonplaces That Still Shock Us, But Shouldn't

In particular, Owen's nomination provides a useful reminder of certain truths about the confirmation process that we continue to accept reluctantly, if at all.

First, whatever past practice, Presidents now choose their federal appellate court nominees on the basis of politics and ideology. Yes, they even use litmus tests. And especially when nominees have - like Owen - previously served in similar positions, the litmus tests can be pretty accurate; the nominee's past record will be a good predictor of her future one.

Second, no one should be shocked or dismayed by this. Presidents have an electoral mandate to choose judges who subscribe to their own ideology. Their choice is one of only two times the democratic process touches judicial nominees, who thereafter serve for life with fixed salaries. (The confirmation process, of course, is the second time). Thus, this choice is rightly political.

Third, the Senate has every right to reject a nominee precisely because of the politics and ideology that led him or her to be selected in the first place. Again, the confirmation process is one of only two chances to democratically influence the choice of the nominee, who will then be insulated from politics forever.

The Constitution gives the Senate the power to deny confirmation. When the Senators exercise that power, they are carrying out the electoral mandate they were given - just as the President initially does when he chooses a nominee.

Indeed, I would even go so far as to argue that, in this era of divided government (reflecting the nation's ideological divisions), the Senate has a duty to counter White House efforts to ideologically stack the federal courts.

Those who seek a non-ideological rubber stamp from the Senate that looks to "competence," not politics," should consider whether they can honestly say the initial choice of the nominee was similarly nonpolitical, non-ideological and purely "competence" based. Of course, it never is. And there is no better illustration of that than the choice of Priscilla Owen.

The story of Owen begins in the White House. When Bush entered the Oval Office he inherited an open seat on the Fifth Circuit. Why? Because the Republican-controlled Senate had twice refused to confirm President Clinton's proposed nominees for the seat.

As should hardly be surprising given Bush's political roots, his team looked to the Texas Supreme Court for a candidate. As the former Governor of Texas, Bush was familiar with these judges. Perhaps as important, Alberto Gonzales, his White House Counsel (who ostensibly runs the nomination process) was formerly a justice on that court.

As it turned out, the White House considered two Texas Supreme Court justices, both women Republicans, to fill the empty Fifth Circuit seat: Deborah Hankinson and Pricilla Owen. Two key distinctions separate the candidates: reputation and abortion politics.

Owen's Troubled Reputation: The Ford v. Miles Case

First, as is no secret around the Texas courthouse, Hankinson enjoys a substantially better reputation as a jurist than does Owen. Indeed, Owen enjoys a reputation for not getting her work done promptly - even in cases that call for speedy resolution.

The products liability case Ford v. Miles, which involved the safety of the seatbelt system in the Ford Ranger pickup truck, presents the most egregious example.

The plaintiffs in the case, the Mileses, were parents to a 14 year-old boy who had been rendered quadriplegic when the Ranger in which he was riding in struck another car. The Mileses sued Ford, claiming that a problem in the seat belt system (basically, that it was too lax) caused their son's severe injury. A jury agreed, awarding them $30 million dollars in actual damages and another $10 million in punitives.

When Ford filed its appeal, the Mileses asked the Texas Supreme Court to expedite their handling of the case. They had been wrangling with Ford in the trial court for years. Payment of the award was on hold because of the appeal. Meanwhile, the family was running out of money for their son's ferociously expensive medical care. So they pleaded with the Texas Supreme Court to decide their case quickly. Strikingly, Ford even joined in the request.

Inside the court, Priscilla Owen was pre-assigned the case - meaning that, if she ended agreeing with a majority of other justices, she would write the majority opinion. And that's how it turned out. The court split 5-4, with Owen writing the majority

In contrast, Owen bears singular responsibility for another travesty in the Mileses' case. Instead of giving the case expedited treatment as both parties agreed should occur, and as humanitarian reasons counseled, she sat on the case for month after month before circulating her opinion.

In fact, it took 17 months from the time of oral argument (the last step before opinions are circulated) until the court's final decision. That is a terrible delay in the ordinary case, where litigants wait anxiously for an outcome.. Given the Mileses' circumstance and their plea for expedited treatment, those 17 months were outrageous.

Notably, the court formally denied the Mileses' motion for expedited treatment. It explained, in an order that would bring a smile to George Orwell's face, that "The request is overruled, not because it should not have been granted, but because, in fact, it was not granted." This cryptic notation, according to insiders, is the residue of a furious internal battle over Owen's delay.

Owen Versus Hankinson on Abortion Politics

Turning to the second distinction between Hankinson and Owen - abortion politics - Owen's tenure has been marked by staunch resistance to abortion rights. Most notably, she unsuccessfully campaigned to restrict the right of minors to obtain abortions without parental consent - even if a judge thinks that under the circumstances, an abortion without parental consent is proper.

Under Texas law, teenagers can go to court to bypass the usual requirement of having to get parental consent before obtaining an abortion. (Such a bypass procedure is required by the federal constitution.) The teenager can obtain the bypass if she shows that she is "well informed, mature and would suffer if she informed her parents."

According to Owen, for the teenager to prove she is "well informed," she must prove - regardless of her own religious background or lack thereof - that she knew about the many religious objections to abortion, and that some women who underwent abortions had serious remorse.

A Planned Parenthood counseling session that did not mention these topics would not be enough. Nor would a lengthy talk with a religious figure - if the talk restricted itself to the decision itself, not the objections to abortion, or if the priest did not point out that women sometimes regret their abortions. Only this particular information, Owen thought, could make a teenager "well informed" about her decision, and a judge has no discretion to find otherwise.

A majority of the Texas Supreme Court, including Hankinson, disagreed. Big surprise, they could find no such specific requirement in the statute.

Parenthetically, Owen did not see any urgency about deciding this case either, even though, of course, the petitioner was a young girl seeking to terminate a pregnancy. Indeed, she chided the majority for ruling on the case as quickly as it did!

In any case, the split between Owen and Hankinson on the bypass issue ruined Hankinson's chances for getting the White House nod. According to Hankinson, White House officials told her frankly that she was dropped on account of her opinions in the teenage abortion cases.

An Ideological Selection Deserves An Ideological Confirmation

In other words, ideology (and the fact that Owen is tight with Karl Rove, Bush's right-wing political director) trumped judicial reputation. Surely under such circumstances the Democratic Senate has a right, even a duty, to tell President Bush that this type of judicial selection will not stand.

Yesterday's Senate hearing only reinforced the point. Owen accused "professional smear groups" of "distortions and demagoguery" regarding her record. But while such charges have at times been well-founded (during the Robert Bork hearings, for example), Owen's claims are belied by her own testimony.

Most telling was her response to Senatorial criticism, echoing Gonzales's earlier comments, that her approach to judicial bypass for pregnant teenage girls injected her own personal views into the law. Absolutely not, Owen insisted: "My personal beliefs don't enter into any of my decisions," she claimed.

This is the most tired of tired old saws. Surely we are past the point of believing that a judge's personal views don't color his or her decisions. They do, inevitably.

And they should - at least to some limited extent. Judging - whether it involves the common law, statutory construction, or the interpretation of the Constitution - necessarily involves moral choice between competing visions of the law, at least in the tough cases.

When a judicial nominee so emphatically denies this, that is the surest sign of a jurist who either lacks self-knowledge or is pretending. The White House knows ideology matters. So does the Senate - and it shouldn't have the least compunction about voting promptly and openly on just that ground.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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